Om Parkash Vs. Ved Parkash and ors. - Court Judgment

Excerpt:
- orderr.l. khurana, j.1. the abovenoted two second appeals arising out of the judgment and decree dated 11-11-1997 of the learned district judge, nahan, are being disposed of by this single judgment.2. the appellants in both the appeals were the defendants while respondents 1 to 3 were the plaintiffs before the learned trial court. they are being referred to accordingly hereinafter.3. in a suit for partition of joint property, being civil suit no. 5/1 of 1974, filed by one kanshi ram, the predecessor-in-interest of the present plaintiffs, a preliminary decree for partition was passed on 19-9-1986. the shares of the parties were determined as under :--1. plaintiff -1 /3rd share.2. defendants nos. 1 and 2-1 /3rd share.3. smt jawala devi-1 /3rd share. (deceased defendant no. 3).4. defendant no. 1 om parkash assailed the preliminary decree dated 19-9-1986 by way of an appeal before the learned district judge, nahan. such appeal was dismissed on 19-7-1987. thereafter, the plaintiffs applied for passing a final decree on the basis of the preliminary decree. during the pendency of the application for passing the final decree, various local commissioners were appointed to partition the property by metes and bounds in terms of the preliminary decree. spot was inspected also by various presiding officers of the trial court and efforts were made to bring about some amicable settlement between the parties, however, the matter could not be settled. ultimately, on 27-3-1997 on the agreement between the parties. shri n. s. chauhan. advocate, was appointed as a local commissioner to effect the partition of the joint property. the said local commissioner, after effecting the partition submitted his report dated 7-4-1997 to the trial court. defendant no. 1 om parkash preferred objections to such report.5. the learned trial court, after hearing the parties and having considered the material on the record, dismissed the objections and passed a final decree for partition on the basis of the report dated 7-4-1977 of the local commissioner, vide order dated 11-7-1997.6. feeling aggrieved, the defendants nos. 1 and 2, sarvshri om parkash and ram sarup approached the learned district judge by way of two separate appeals, being civil misc. appeals nos. 17-cma/14 of 1997 and 18 cma/14 of 1997. both these appeals were dismissed by the learned district judge vide a common judgment and decree dated 11-11-1997. only a clerical error in the calculation of amount payable to the plaintiffs was corrected as indicated in para 20 of the judgment of the learned district judge.7. the defendants nos. 1 and 2 are now before this court by way of the present two regular second appeals.8. i have heard the learned counsel for the parties and have als6 gone through the record of the case.9. as stated above. shri n. s. chauhan. advocate, was appointed as a local commissioner, by the learned trial court vide order dated 27-3-1997. the said order reads :--'ld. counsel for the parties are agreed to get shri n. s. chauhan. a local advocate, appointed as local commissioner. hence, the said advocate, who has come present in court, is hereby appointed a local commissioner to effect partition of the suit property strictly in accordance with the preliminary decree. while effecting partition, the local commissioner shall, however, bear in mind the order dated 3-4-1995 passed by my ld. predecessor-in-office. he may peruse the said order, before proceeding to the spot. the parties in presence are directed to be present at trilokpur where part of the suit property is situate, on march 30, 1997 around 11 a.m. when local commissioner proposes to visit there. fee of the local commissioner is assessed at rs. 2,000/- to be equally borne by the parties in presence. the fee shall be paid at the spot. the report of the local commissioner be called for 31-3-1997.'10. under order 26, code of civil procedure, local commissioners are appointed for different purposes and the procedure prescribed for that is also differently provided. the appointment of local commissioner for partition of immovable property after the passing of a preliminary decree is governed by rule 13 of order 26. rule 14 of the said order lays down the procedure to be followed by the local commissioner. rule 14 reads :--'procedure of commissioner.-- (1) the commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directed by the order under which the commission was issued, and shall allot such shares to the parties, and may, if authorised thereto by the said order, award sums to be paid for the purpose of equalising the value of the shares.(2) the commissioner shall then prepare and sign a report or the commissioners (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. such report or reports shall be annexed to the commission and transmitted to the court; and the court, after hearing any objections which the parties may make to the report or reports shall confirm, vary or set aside the same.(3) where the court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the court set aside the report or reports it shall either issue a new commission or make such other order as it shall think fit.'11. sub-rule (2) of rule 14 of order 26casts a duty on the court to hear the objections, if any, which the parties may make tothe report and then to confirm. vary or setaside the report. ''12. dealing with the meaning of the words 'to hear' appearing in sub-rule (2) of rule 14 of order 26, a division bench of the lahore high court in nasir ahmad v. sarfaraz-ur-rahman khan, air 1935 lahore 501, has held that the words 'to hear' implies that the parties are entitled to substantiate their objections. in such cases as a rule of practice the local commissioner should first be examined with reference to the objections, if any, and if it appears from the statement of the commissioner that there is ground for further inquiry into any matter which is raised in the objections, then the parties should be allowed to produce evidence or the commissioner be directed to amend his report accordingly.13. a division bench of the calcutta high court in gourhari das v. jaharlal seal, air 1957 cal 90, dealing with the scope of sub-rule (2) of rule 14 of order 26, has held :--'.......... the provisions, as contained in sub-rule (2) of rule 14, do not specify in detail the procedure to be followed by the court. the proper procedure, in our view, should be that after the parties had adduced materials before the commissioner, so far as the valuation of the property is concerned, the parties should not be allowed to adduce further expert evidence off hand. the commissioner whose report is under consideration if proposed to be examined by either of the parties should be called. if after examining the commissioner and cross-examining him by either party, the court finds that materials are available either to accept the report on the face of it or to remit the report either to the old commissioner or to a fresh commissioner, the court will proceed to do the same. if, however, the court finds it necessary that further materials should be made available, it may in an exceptional case allow fresh evidence as to the valuation being put before the court.'14. a perusal of the record of the present case shows that the report dated 7-4-1997 of the local commissioner was received in the court on 8-4-1997. objections to such report were preferred by defendant no. 1 om parkash on 23-4-1997. reply to the objections was filed by the plaintiffs on 26-4-1997 and the case was adjourned to 2-5-1997 for consideration of the objections. since the counsel for the plaintiffs was indisposed on 2-5-1997, the case was adjourned to 5-5-1997 for consideration of the objections and the report. on 5-5-1997, an application was made by defendant no. 1 for summoning the local commissioner. the case was thus adjourned to 6-5-1997 for 'reply and consideration'. since the members of the bar were abstaining from appearing in court on 6-5-1997, the case was adjourned to 8-5-1997 for consideration. however, reply to the application made on 5-5-1997 for summoning the local commissioner was filed by the plaintiffs on 6-5-1997.15. the case was partly heard on 8-5-1997 and was adjourned to 14-5-1997 for further hearing. the order dated 8-5-1997, reads :--'arguments heard partly. the court time is over. for further arguments on the objection petition to the report of l.c. to come up on 14-5-1997.'16. the hearing of the case did not conclude even on 14-5-1997 and it was adjourned to 20-5-1997, vide order passed in the following terms :--'arguments heard partly. the court time is over. for further arguments to come up on 20-5-1997.'17. hearing in the case concluded on 20-5-1997, in which date it was adjourned to 19-6-1997 for pronouncement of orders. however, orders could not be pronounced on 19-6-1997, since in the meanwhile the presiding officer of the court was transferred. the case was taken up by the successor-in-office on 5-7-1997, when the following orders were passed :--'file taken up today. the arguments in this case were heard by my predecessor and the orders could not be announced before he relinquished charge. now, it is necessary to hear fresh arguments in this case. hence for fresh arguments to come up on 7-7-1997.'18. the case was reheard on 9-7-1997 and orders were pronounced on 11-7-1997, whereby the objections were dismissed, the report of local commissioner was affirmed and a final decree in terms thereof was passed.19. a reading of the orders passed by the learned trial court since after the receipt of the report of the local commissioner till 11-7-1997, the date on which final decree was passed brings out the following facts :--(1) no opportunity was given to the defendant to lead evidence in support of his objections to the report of the local commissioner.(2) even his request made to summon the local commissioner was not acceded to. in fact the application made by defendant no. 1 in this behalf on 5-5-1997 was never disposed of and without deciding the said application, the learned trial court had proceeded to dismiss the objections.20. the calcutta high court in gourhari dass's case (supra) has held that the examination of the commissioner, when the report submitted by him is being questioned is essential, if any of the parties requires it. the omission by the court to examine the commissioner was not correct and that the court ought to have allowed the commissioner to be called and then to proceed with the case in accordance with law. the high court, therefore, after allowing the appeal set aside the order of the trial court and remitted the case for re-hearing according to law.21. in the present case as well, the learned trial court failed to call the commissioner and examine him though a specific prayer was made in this regard by defendant no. 1 vide his application made on 5-5-1997. the ratio laid down by calcutta high court with which 1 am in full agreement, applies to the facts of the present case.22. resultantly, both the appeals are allowed. the judgment and decree dated 11-7-1997 of the learned trial court as affirmed in appeals by the learned district judge vide judgments and decrees dated 11-11-1997, are set aside and the ease is remanded to the learned trial court (senior sub judge, nahan), for disposal afresh in accordance with law and in the light of the observations made above. no orders as to costs. 23. the parties, through their counsel are directed to appear before the learned trial court on 22-2-2000. the records be returned forthwith so as to reach well before the date fixed. since the case pertains to the year 1974, the learned trial court shall make all endeavours to dispose of the same as far as possible, within three months from the date the parties put in appearance before it, as above directed.

Judgment:
ORDER

R.L. Khurana, J.

1. The abovenoted two Second Appeals arising out of the judgment and decree dated 11-11-1997 of the learned District Judge, Nahan, are being disposed of by this single Judgment.

2. The appellants in both the appeals were the defendants while respondents 1 to 3 were the plaintiffs before the learned trial Court. They are being referred to accordingly hereinafter.

3. In a suit for partition of joint property, being civil suit No. 5/1 of 1974, filed by one Kanshi Ram, the predecessor-in-interest of the present plaintiffs, a preliminary decree for partition was passed on 19-9-1986. The shares of the parties were determined as under :--

1. Plaintiff

-

1 /3rd share.

2. Defendants Nos.

1 and 2

-

1 /3rd share.

3. Smt Jawala Devi

-

1 /3rd share.

(deceased defendant

No. 3).

4. Defendant No. 1 Om Parkash assailed the preliminary decree dated 19-9-1986 by way of an appeal before the learned District Judge, Nahan. Such appeal was dismissed on 19-7-1987. Thereafter, the plaintiffs applied for passing a final decree on the basis of the preliminary decree. During the pendency of the application for passing the final decree, various local Commissioners were appointed to partition the property by metes and bounds in terms of the preliminary decree. Spot was inspected also by various Presiding Officers of the trial Court and efforts were made to bring about some amicable settlement between the parties, however, the matter could not be settled. Ultimately, on 27-3-1997 on the agreement between the parties. Shri N. S. Chauhan. Advocate, was appointed as a Local Commissioner to effect the partition of the Joint property. The said Local Commissioner, after effecting the partition submitted his report dated 7-4-1997 to the trial Court. Defendant No. 1 Om Parkash preferred objections to such report.

5. The learned trial Court, after hearing the parties and having considered the material on the record, dismissed the objections and passed a final decree for partition on the basis of the report dated 7-4-1977 of the Local Commissioner, vide order dated 11-7-1997.

6. Feeling aggrieved, the defendants Nos. 1 and 2, Sarvshri Om Parkash and Ram Sarup approached the learned District Judge by way of two separate appeals, being Civil Misc. Appeals Nos. 17-CMA/14 of 1997 and 18 CMA/14 of 1997. Both these appeals were dismissed by the learned District Judge vide a common judgment and decree dated 11-11-1997. Only a clerical error in the calculation of amount payable to the plaintiffs was corrected as indicated in para 20 of the Judgment of the learned District Judge.

7. The defendants Nos. 1 and 2 are now before this Court by way of the present two regular Second Appeals.

8. I have heard the learned counsel for the parties and have als6 gone through the record of the case.

9. As stated above. Shri N. S. Chauhan. Advocate, was appointed as a Local Commissioner, by the learned trial Court vide order dated 27-3-1997. The said order reads :--

'Ld. counsel for the parties are agreed to get Shri N. S. Chauhan. a local advocate, appointed as Local Commissioner. Hence, the said advocate, who has come present in Court, is hereby appointed a Local Commissioner to effect partition of the suit property strictly in accordance with the preliminary decree. While effecting partition, the Local Commissioner shall, however, bear in mind the order dated 3-4-1995 passed by my ld. predecessor-in-office. He may peruse the said order, before proceeding to the spot. The parties in presence are directed to be present at Trilokpur where part of the suit property is situate, on March 30, 1997 around 11 a.m. when Local Commissioner proposes to visit there. Fee of the Local Commissioner is assessed at Rs. 2,000/- to be equally borne by the parties in presence. The fee shall be paid at the spot. The report of the Local Commissioner be called for 31-3-1997.'

10. Under Order 26, Code of Civil Procedure, Local Commissioners are appointed for different purposes and the procedure prescribed for that is also differently provided. The appointment of Local Commissioner for partition of immovable property after the passing of a preliminary decree is governed by Rule 13 of Order 26. Rule 14 of the said Order lays down the procedure to be followed by the Local Commissioner. Rule 14 reads :--

'Procedure of Commissioner.-- (1) The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directed by the order under which the commission was issued, and shall allot such shares to the parties, and may, if authorised thereto by the said order, award sums to be paid for the purpose of equalising the value of the shares.

(2) The Commissioner shall then prepare and sign a report or the Commissioners (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to the Court; and the Court, after hearing any objections which the parties may make to the report or reports shall confirm, vary or set aside the same.

(3) Where the Court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the Court set aside the report or reports it shall either issue a new commission or make such other order as it shall think fit.'

11. Sub-rule (2) of Rule 14 of Order 26casts a duty on the Court to hear the objections, if any, which the parties may make tothe report and then to confirm. Vary or setaside the report. ''

12. Dealing with the meaning of the words 'to hear' appearing in Sub-rule (2) of Rule 14 of Order 26, a Division Bench of the Lahore High Court in Nasir Ahmad v. Sarfaraz-ur-Rahman Khan, AIR 1935 Lahore 501, has held that the words 'to hear' implies that the parties are entitled to substantiate their objections. In such cases as a rule of practice the Local Commissioner should first be examined with reference to the objections, if any, and if it appears from the statement of the commissioner that there is ground for further inquiry into any matter which is raised in the objections, then the parties should be allowed to produce evidence or the commissioner be directed to amend his report accordingly.

13. A Division Bench of the Calcutta High Court in Gourhari Das v. Jaharlal Seal, AIR 1957 Cal 90, dealing with the scope of Sub-rule (2) of Rule 14 of Order 26, has held :--

'.......... The provisions, as contained in Sub-rule (2) of Rule 14, do not specify in detail the procedure to be followed by the Court. The proper procedure, in our view, should be that after the parties had adduced materials before the Commissioner, so far as the valuation of the property is concerned, the parties should not be allowed to adduce further expert evidence off hand. The Commissioner whose report is under consideration if proposed to be examined by either of the parties should be called. If after examining the Commissioner and cross-examining him by either party, the Court finds that materials are available either to accept the report on the face of it or to remit the report either to the old Commissioner or to a fresh Commissioner, the Court will proceed to do the same. If, however, the Court finds it necessary that further materials should be made available, it may in an exceptional case allow fresh evidence as to the valuation being put before the Court.'

14. A perusal of the record of the present case shows that the report dated 7-4-1997 of the Local Commissioner was received in the Court on 8-4-1997. Objections to such report were preferred by defendant No. 1 Om Parkash on 23-4-1997. Reply to the objections was filed by the plaintiffs on 26-4-1997 and the case was adjourned to 2-5-1997 for consideration of the objections. Since the counsel for the plaintiffs was indisposed on 2-5-1997, the case was adjourned to 5-5-1997 for consideration of the objections and the report. On 5-5-1997, an application was made by defendant No. 1 for summoning the Local Commissioner. The case was thus adjourned to 6-5-1997 for 'reply and consideration'. Since the members of the bar were abstaining from appearing in Court on 6-5-1997, the case was adjourned to 8-5-1997 for consideration. However, reply to the application made on 5-5-1997 for summoning the Local Commissioner was filed by the plaintiffs on 6-5-1997.

15. The case was partly heard on 8-5-1997 and was adjourned to 14-5-1997 for further hearing. The order dated 8-5-1997, reads :--

'Arguments heard partly. The Court time is over. For further arguments on the objection petition to the report of L.C. to come up on 14-5-1997.'

16. The hearing of the case did not conclude even on 14-5-1997 and it was adjourned to 20-5-1997, vide order passed in the following terms :--

'Arguments heard partly. The Court time is over. For further arguments to come up on 20-5-1997.'

17. Hearing in the case concluded on 20-5-1997, in which date it was adjourned to 19-6-1997 for pronouncement of orders. However, orders could not be pronounced on 19-6-1997, since in the meanwhile the Presiding Officer of the Court was transferred. The case was taken up by the successor-in-office on 5-7-1997, when the following orders were passed :--

'File taken up today. The arguments in this case were heard by my predecessor and the orders could not be announced before he relinquished charge. Now, it is necessary to hear fresh arguments in this case. Hence for fresh arguments to come up on 7-7-1997.'

18. The case was reheard on 9-7-1997 and orders were pronounced on 11-7-1997, whereby the objections were dismissed, the report of Local Commissioner was affirmed and a final decree in terms thereof was passed.

19. A reading of the orders passed by the learned trial Court since after the receipt of the report of the Local Commissioner till 11-7-1997, the date on which final decree was passed brings out the following facts :--

(1) No opportunity was given to the defendant to lead evidence in support of his objections to the report of the Local Commissioner.

(2) Even his request made to summon the Local Commissioner was not acceded to. In fact the application made by defendant No. 1 in this behalf on 5-5-1997 was never disposed of and without deciding the said application, the learned trial Court had proceeded to dismiss the objections.

20. The Calcutta High Court in Gourhari Dass's case (supra) has held that the examination of the Commissioner, when the report submitted by him is being questioned is essential, if any of the parties requires it. The omission by the Court to examine the Commissioner was not correct and that the Court ought to have allowed the Commissioner to be called and then to proceed with the case in accordance with law. The High Court, therefore, after allowing the appeal set aside the order of the trial Court and remitted the case for re-hearing according to law.

21. In the present case as well, the learned trial Court failed to call the Commissioner and examine him though a specific prayer was made in this regard by defendant No. 1 vide his application made on 5-5-1997. The ratio laid down by Calcutta High Court with which 1 am in full agreement, applies to the facts of the present case.

22. Resultantly, both the appeals are allowed. The judgment and decree dated 11-7-1997 of the learned trial Court as affirmed in appeals by the learned District Judge vide judgments and decrees dated 11-11-1997, are set aside and the ease is remanded to the learned trial Court (Senior Sub Judge, Nahan), for disposal afresh in accordance with law and in the light of the observations made above. No orders as to costs.

23. The parties, through their counsel are directed to appear before the learned trial Court on 22-2-2000. The records be returned forthwith so as to reach well before the date fixed. Since the case pertains to the year 1974, the learned trial Court shall make all endeavours to dispose of the same as far as possible, within three months from the date the parties put in appearance before it, as above directed.